BC520356RO
                             STATE OF NEW YORK
                    DIVISION OF HOUSING AND COMMUNITY RENEWAL
                          OFFICE OF RENT ADMINISTRATION
                                   GERTZ PLAZA
                             92-31 UNION HALL STREET
                             JAMAICA, NEW YORK 11433

      ------------------------------------X 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. BC520356RO

                                          :  DISTRICT RENT OFFICE
           Carmen Espinosa,                  DOCKET NO. UC000164R
                                            
                                             TENANT: Alberto Vega             
             
                            PETITIONER    : 
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
            IN PART AND MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER


      On March 18, 1987, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on February 17, 1987, by 
      the Rent Administrator concerning the housing accommodations known as   
      171 East 115th Street, New York, New York, Apartment No. 7, wherein the 
      Rent Administrator determined that the owner had overcharged the tenant.

      The administrative appeal is being determined pursuant to the provisions 
      of Section 2526.1 of the Rent Stabilization Code.

      The issue herein is whether the Rent Administrator's order was 
      warranted.

      The Commissioner has reviewed all of the evidence in the record and has 
      carefully considered that portion of the record relevant to the issue 
      raised by the administrative appeal.  

      This proceeding was commenced by the filing of a rent overcharge 
      complaint by the tenant in November, 1985.  The owner was served with a 
      copy of the tenant's complaint and responded in substance, that the 
      tenant had been paying $140.00 rent per month from 1978 to 1985, but had 
      agreed to pay $250.00 per month which the owner requested due to 
      hardship, effective October 1, 1985.  The owner asserted that she 
      believed she was entitled to more than $250.00 per month in rent, based 
      on allowable guidelines increases.  The owner also asserted that she was 
      entitled to a rent increase due to the installation of a new roof, oil 
      burner, bathroom tiles and fixtures and kitchen faucet and plumbing.

      In support of these allegations, the owner submitted the following 
      documents: two photocopies of paid invoices from "German Rivera Building 
      Renovations/Repairs": the first, No. 8375, dated September 10, 1985, for 
      various repairs to the bathroom, kitchen and living room of the subject 
      housing accommodations; the second, No. 8379 dated October 15, 1985, for 
      installation of a new roof and oil burner.


      In addition, the owner submitted her computation of allowable rents, 
      including yearly guidelines increases.







          BC520356RO


      Under Docket Number ZUC000164R, the Rent Administrator established the 
      lawful stabilized rent as $140.00 per month effective April 1, 1984, 
      deemed a lease for the period from October 1, 1985 to August 31, 1987 at 
      a monthly rent of $152.60 and denied any increase for the work performed 
      in the subject apartment as not constituting improvements.  The 
      Administrator determined that the tenant had been overcharged and 
      directed a refund to the tenant of $1,746.60, including interest on 
      overcharges collected on or after April 1, 1984.

      In this petition, the owner contends that she was entitled to an 
      additional $15.00 per month for low rents for the lease commencing 
      October 1, 1985 and that she was improperly denied increases for 
      improvements she made to the subject housing accommodations.

      The tenant did not respond to the petition.

      The Commissioner is of the opinion that this petition should be granted 
      in part, and the order of the Administrator modified.

      An examination of the Administrator's rent calculation chart reveals the 
      following inconsistency: the deemed lease term is indicated as 
      commencing on September 1, 1985, but both the effective date of increase 
      and the beginning of the overcharge calculations was October 1, 1985.  
      Since it is clear that October 1, 1985 was the commencement date 
      intended by the Administrator and it is undisputed that increases were 
      paid as of that date, the Guidelines period that should have been used 
      was Guidelines No. 17 rather than Guidelines 16, which period expired on 
      September 30, 1985.  The computation under Guidelines 17 should include 
      a 6.5% increase for a deemed 2 year renewal lease plus a $15.00 
      allowance for low rent. 

      The revised rent calculations are as follows: On October 1, 1985, to the 
      initial legal registered rent of $140.00, is added the Guidelines 17 
      increase of 6.5 per cent, plus $15.00 per month, for a lawful stabilized 
      rent totalling $164.10 per month.  Since the tenant was charged $250.00, 
      the resultant monthly overcharge was $85.90.  The total overcharge for 
      the period from October 1, 1985 to January 31, 1987, including interest 
      on overcharges and excess security, is $1,547.92.

      The two major work items for which the owner seeks recompense are a new 
      roof and a new oil burner.  The Commissioner finds that these items are 
      ineligible as installations "in or to the housing accommodation", as 
      required by Section 2522.4 (a)(1) of the Rent Stabilization Code, but 
      rather fall within the category of major capital improvements, under 
      Section 2522.4(a)(2), and the owner should have sought relief under that 
      section in a timely fashion.

      The Administrator was correct in finding that the balance of the work 
      done in the subject apartment constituted ordinary maintenance and 
      repairs, and thus the owner may collect no increase under Section 2522.4 
      (a)(1) of the Rent Stabilization Code.


      The owner is directed to reflect the findings and determinations made in 
      this order on all future registration statements, including those for 
      the current year if not already filed, citing this order as the basis 
      for the change.  Registration statements already on file, however, 


          BC520356RO

      should not be amended to reflect the findings and determinations made in 
      this order.  The owner is further directed to adjust subsequent rents to 
      an amount no greater than that determined by this order plus any lawful 
      increases.

      The Commissioner has determined in this Order and Opinion that the owner 
      collected overcharges of $1,547.92.  This Order may, upon expiration of 
      the period for seeking review of this Order and Opinion pursuant to 
      Article Seventy-eight of the Civil Practice Law and Rules, be filed and 
      enforced as a judgment or not in excess of twenty percent per month of 
      the overcharge may be offset against any rent thereafter due the owner.  
      Where the tenant credits the overcharge, the tenant may add to the 
      overcharge, or where the tenant files this Order as a judgment, the 
      County Clerk may add to the overcharge, interest at the rate payable on 
      a judgment pursuant to section 5004 of the Civil Practice Law and Rules 
      from the issuance date of the Rent Administrator's Order to the issuance 
      date of the Commissioner's order.

      THEREFORE, in accordance with the provisions of the Rent Stabilization 
      Law and Code, it is

      ORDERED, that this petition for administrative review be, and the same 
      hereby is, granted in part, and, that the order of the Rent 
      Administrator be, and the same hereby is, modified pursuant to this 
      order and opinion.



      ISSUED:




                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

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